Jonah Patel
The US Constitution Annotated mentions national security in the context of the Fourth Amendment, which covers searches and seizures. The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The government must obtain a warrant based on probable cause before conducting a search or seizure, except in specific situations. The Court has suggested that Congress may set a different standard of probable cause for national security cases, acknowledging that domestic security surveillance involves different policy and practical considerations from ordinary crime investigations. The scope of the President's constitutional powers in national security matters remains a subject of judicial debate. The US Constitution also outlines the roles of various government agencies and departments, such as the Federal Bureau of Investigation and the Director of National Intelligence, in gathering intelligence and ensuring national security.
| Characteristics | Values |
|---|---|
| Search and seizure | Requires a warrant, except in narrowly defined situations |
| Warrants | Must be supported by probable cause, and particularly describe the place to be searched and items to be seized |
| Surveillance | Requires a different standard of probable cause in national security cases |
| Vetting and screening | Used to protect citizens from terrorist attacks and other national security threats |
| Information-sharing | Critical for the effectiveness of screening and vetting protocols |
| Identity management | Important for managing the identity and travel documents of citizens and residents |
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What You'll Learn
The right to be secure in one's home
The US Constitution's Bill of Rights, comprising the first ten amendments, was written to limit government power and protect individual liberties. The Fourth Amendment specifically addresses the right to be secure in one's home, safeguarding citizens' privacy and property rights.
The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". This means that citizens have the right to be free from arbitrary government intrusion into their homes and that their personal belongings and property cannot be searched or seized without a valid warrant. The amendment ensures that warrants are only issued based on probable cause, supported by an oath or affirmation, and that the places to be searched and items to be seized are specifically described.
The amendment's purpose is to protect individuals' privacy and property rights by requiring government officials to follow due process and obtain judicial authorisation before conducting searches or seizures. This limitation on government power ensures that citizens' homes and belongings are protected from arbitrary or unjustified intrusions.
The Fourth Amendment has been the subject of several court cases and interpretations over the years. In Katz v. United States (1967), Justices William O. Douglas and William J. Brennan rejected the idea that Congress could override this right in the name of national security without clear and specific justification. This case affirmed the importance of the Fourth Amendment and set a precedent for future interpretations.
Additionally, the Third Amendment, part of the Bill of Rights, further reinforces the right to be secure in one's home by stating that "no soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law". This amendment explicitly prohibits the government from using private homes to house soldiers without the owner's consent, even during wartime, further emphasising the importance of protecting citizens' privacy and property rights.
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Search and seizure warrants
The Fourth Amendment of the U.S. Constitution protects individuals from "unreasonable searches and seizures". This means that, in most cases, police cannot search a person, their home, their belongings, or seize their property without a warrant or probable cause. This amendment was ratified by the states in 1791 as part of the Bill of Rights, and it is often viewed as consisting of two clauses.
The first clause states:
> "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In other words, the Fourth Amendment upholds the right to privacy and freedom from unreasonable government intrusion. This includes the privacy of one's body, as seen in cases where strip searches and body cavity searches have been deemed reasonable under the Fourth Amendment when supported by probable cause and conducted appropriately.
The second clause of the Fourth Amendment covers the constitutional right to privacy, search warrants, and the protection of personal property. This includes the concept of a "reasonable expectation of privacy," which was introduced in the landmark case of Katz v. United States (1967). In this case, the Supreme Court ruled that a search had occurred under the Fourth Amendment when law enforcement agents installed a recording device in a public telephone booth without a warrant.
While the Fourth Amendment generally requires a warrant for searches and seizures, there are exceptions. For example, warrantless searches and seizures are permitted in certain situations, such as vehicle searches when an officer has probable cause to believe the vehicle contains contraband, or when evidence is in plain view or in "open fields" where privacy is not expected.
Furthermore, the Supreme Court has carved out numerous exceptions to the warrant requirement, and technological advancements have expanded the government's ability to search and surveil, raising questions about what constitutes a "search" under the Fourth Amendment.
In summary, the Fourth Amendment serves as a crucial safeguard against unreasonable searches and seizures, ensuring that individuals' privacy and personal liberties are respected while also providing flexibility for law enforcement to act in certain situations without a warrant.
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Surveillance and privacy
The Fourth Amendment of the US Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects, protecting them from unreasonable searches and seizures. This amendment sets out the requirement for a warrant, which must be supported by probable cause, and must detail the place to be searched and the persons or things to be seized.
However, the government's surveillance programs have expanded significantly since the terrorist attacks of September 11, 2001. The National Security Agency (NSA) has been revealed to have tracked the calls, text messages, web-browsing activities, and emails of hundreds of millions of Americans. This has been enabled by the FISA Amendments Act (FAA) and Executive Order 12,333. The American Civil Liberties Union (ACLU) has been advocating for greater transparency and access to information about the government's surveillance programs, and has challenged the secrecy of its practices and their violation of privacy rights.
The ACLU has also been working to reform the Patriot Act, challenging the government's use of National Security Letters. They have filed motions with the Foreign Intelligence Surveillance Court (FISC) to release opinions authorising the bulk collection of data and to allow companies to disclose the type and volume of national security requests they receive.
Americans have expressed a desire for control over their personal information and freedom from observation in their daily lives. They want limits on the length of time that organisations can retain records of their activities and communications, and greater limits on government surveillance programs. However, opinions vary, with some believing that widespread monitoring can bring benefits to safety and security.
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Presidential powers
The US Constitution gives the President the power to act in the interest of national security and public safety. For instance, in 2025, President Donald J. Trump restricted the entry of foreign nationals into the United States to protect the country from foreign terrorists and other national security and public safety threats. This was done in accordance with the Immigration and Nationality Act (INA), which allows the President to act in the interest of national security.
The President's powers regarding national security are not limited to foreign affairs, however. The President also has the power to take action to protect the country from domestic threats. For example, the President can authorize surveillance of US citizens in certain situations. In United States v. U.S. Dist. Ct. (1972), the Court held that, in cases of domestic subversive investigations, the Fourth Amendment requires compliance with warrant provisions. However, in the same case, Justice Lewis Powell noted that the Court had not made a judgment on the scope of the President's surveillance power regarding the activities of foreign powers.
The question of the extent of the President's constitutional powers in the realm of national security remains unsettled. In United States v. Butenko, the Court rejected the argument that courts could not appreciate the intricacies of investigations in the area of national security. This suggests that the Court may approve a different standard of probable cause in national security cases, as domestic security surveillance involves different policy and practical considerations from the surveillance of ordinary crime.
The President's powers regarding national security are not absolute, however. The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. This means that, in most cases, the government must obtain a warrant based on probable cause before conducting a search or seizure. The warrant must also specifically describe the place to be searched and the persons or things to be seized.
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Foreign affairs and immigration
The US Constitution grants the federal government plenary authority over foreign affairs and immigration, with the power to protect national security and conduct foreign policy vested in the President.
The Commerce Clause in Article I, § 8, clause 3, of the US Constitution provides Congress with the power "to regulate Commerce with foreign Nations, and among the several States." The Supreme Court has interpreted this clause broadly, asserting exclusive federal control over foreign affairs and foreign commerce. This interpretation has been used to uphold federal laws and regulations related to immigration, such as banning state immigration fees and imposing taxes on foreign immigrants.
The federal government's power to regulate immigration is derived from its inherent sovereign power to oversee matters of national concern. This power has been reaffirmed in various Supreme Court cases, including Fong Yue Ting v. United States (Sup.Ct.1893), which held that the power to expel or deport non-citizens is "absolute and unqualified." The Court has also recognised the federal government's plenary power over immigration, granting it almost complete authority to decide whether foreign nationals may enter or remain in the country.
National security concerns have been cited as a critical factor in shaping immigration policies. The US government has taken measures to restrict the entry of foreign nationals from countries with deficient vetting and screening processes to protect against terrorist attacks and other national security threats. These measures are based on the federal government's authority to regulate immigration and protect national security.
The President, in coordination with the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence, plays a key role in identifying countries with inadequate vetting and screening procedures. These measures aim to safeguard the nation from foreign terrorists, criminal aliens, transnational criminal organisations, and other malign actors.
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Frequently asked questions
The Fourth Amendment of the US Constitution covers national security.
The Fourth Amendment states that:
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In Katz v. United States (1967), Justices William O. Douglas and William Brennan rejected the suggestion that the Fourth Amendment prohibited electronic surveillance.
